Srinagar: The High Court of J&K and Ladakh, while dismissing the bail plea of two “drug peddlers”, has held that a small portion of the sealed substance from the recovered lot from the accused prima facie constitutes a representative sample.
The court was hearing two bail applications filed by Rouf Ahmad Ganie and Rayees Ahmad Wani in a case arising out of a 2023 FIR for offences under Section 8/21, 29 of the NDPS Act for possessing 38 bottles of cough syrup containing codeine phosphate.
Police Station, Qazigund Kulgam, had registered the case against the duo, which is pending before the Court of Special Judge (NDPS cases), Anantnag.
The main ground urged by counsels for the petitioners for seeking bail is that the investigating agency has not drawn samples from all the 38 seized bottles, but has sent only two bottles to FSL for expert examination.
They submitted that in the absence of any evidence to show that the other 36 seized bottles also contained codeine phosphate, it cannot be stated that the petitioners were found to be in possession of a commercial quantity of the contraband drug.
Justice Sanjay Dhar, after hearing the contending parties, said it was not obligatory for the investigating agency to send samples from all 38 recovered bottles to FSL for chemical analysis, because all the bottles contained a similar solution and pertained to the same batch.
“One of the sealed bottles from the recovered lot would, prima facie, constitute a representative sample of the recovered bottles,” the bench held.
The bench cited a communication dated 26.04.2023 addressed by SHO, Police Station Qazigund, to the Executive Magistrate, 1st Class, Vessu.
“Twenty 100 ml each) of Codeine recovered from one accused were sealed in Packet ‘A’ whereas 18 bottles (100 ml each) recovered from other accused were sealed in Packet ‘B’ and the same were produced before the Executive Magistrate who extracted two bottles as samples from each packet for sending the same to the FSL,” revealed the record.
It stated that the Executive Magistrate vide his communication dated 01.05.2023 forwarded the samples to the Director FSL, Srinagar, saying “two sealed bags produced by the police were opened. 20 bottles (100 ml each) bearing batch No.VHL2302011 were found in exhibit ‘A’ whereas 18 bottles (100 ml each) bearing batch No.VHL2302011 were found in exhibit ‘B’.
The court referred to the communication that one bottle was taken from exhibit ‘A’ whereas another bottle was taken out from exhibit ‘B’. These samples were sealed and sent to FSL for chemical analysis, it said.
The two bottles are enough to do the needful and it was not obligatory for the investigating agency to send samples from all 38 recovered bottles to FSL for chemical analysis, it added.
As per the prosecution, on April 25, 2023, police personnel of Police Station, Qazigund, while on patrolling duty near Nasoo Badragund Crossing, had laid a ‘naka’ (checkpoint) over there. They spotted two persons proceeding in suspicious circumstances, and each of these two persons was carrying a polythene bag.
On spotting the police party, these persons tried to slip away but were nabbed by the police. Upon the search of polythene bags, bottles containing codeine phosphate were recovered from the bags that were in possession of these two persons. The police registered FIR No.74/2023 for offences under Section 8/21 NDPS Act and started an investigation into the case.
After investigation of the case, offences under Section 8/21, 29 of NDPS Act (illicit drug-related activities) were found established against the petitioners and the challan was laid before the learned trial court.
